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Government, Governance and Lawyering in the Great Lakes Environment

Government, Governance and Lawyering in the Great Lakes Environment. Environmental Law 2 Spring 2006. What do lawyers do?. We manipulate state-sanctioned coercive forces. Influence (trigger, resist, shape) the application of coercive powers of the state .

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Government, Governance and Lawyering in the Great Lakes Environment

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  1. Government, Governance and Lawyering in the Great Lakes Environment Environmental Law 2 Spring 2006

  2. What do lawyers do? We manipulate state-sanctioned coercive forces

  3. Influence (trigger, resist, shape) the application of coercive powers of the state Structure transactions with regard to legal consequences and enforceability

  4. Traditional lawyering depends upon the Westphalian model • To be legitimate, power (sovereignty) must be located in the government of a nation-state • States can delegate or oversee private exercises of power, but are ultimately responsible for the use and consequences of coercion • International law generally reflects the agreements of sovereign nation-states • Power exercised outside this framework is terrorism, or crime

  5. Today’s environmental problems are often beyond the ability of any single jurisdiction to resolve • Where no government has sufficient power, the focus shifts to governance • Multiple jurisdictions and agents/stakeholders come together to create arrangements for getting things done

  6. “Post-sovereign” governance is: • Non-exclusive • Non-hierarchical • Consensus-based, not imposed • Dispute resolution through exit or voice, not voting • Post-territorial (problem-driven, not jurisdictionally defined)

  7. Does such a system have any need for lawyers? • Do we have the right skill set, or anything close to it? • Do we have the right mind set, or anything close to it? • Are we going to become just another bunch of “facilitators” directing traffic?

  8. What good lawyers can bring to the table • Notions of fair process and accountability • Managing complexity without losing important detail • Working in the shadow of law • Focus on worst-case analysis • Understanding the elusiveness of fact • Interest-balancing

  9. Accountability in Collaborative Governance • Exit, voice • Contractual deliverables • Transparency • Indicators

  10. What do indicators indicate?

  11. Strengths of nonprofits in environmental governance • Low-cost service delivery • Local knowledge (people, places, politics) • “Street Credibility” and commitment to outreach • Ability to mobilize volunteers • (Some) ability to act politically • Access to different funding sources • More nimble than government in changing priorities and policies • Easier to work across jurisdictional boundaries

  12. Weaknesses of nonprofits in environmental governance • Lack of formal authority • Difficulty of maintaining credibility in the middle ground---pragmatism v. ideological purity • Schizophrenia of grassroots vs. well connected • Lack of resources—especially cash flow • Transaction costs • Dependence on government, “biting the hand”

  13. Where to look for blame when things don’t work . . .

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